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(Yahoo)   Justice Scalia: It is easy to make the right decision on the Supreme Court if you invent your own reality   (news.yahoo.com) divider line 39
    More: Asinine, Scalia, supreme courts, federal benefits, 38th state, United States federal courts, left-wing politics, Chief Justice John Roberts, abortions  
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9514 clicks; posted to Main » on 05 Oct 2012 at 11:44 AM (2 years ago)   |  Favorite    |   share:  Share on Twitter share via Email Share on Facebook   more»



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Archived thread
2012-10-05 09:02:22 AM  
6 votes:

kronicfeld: Aarontology: Corporations don't have special rights in the Constitution, but that didn't stop Scalia from making some up. Now, if you're a real, flesh and blood person, Scalia thinks you only get the rights specifically granted in the bill of rights.

But legal entities? Sky's the limit.

What "special rights" do "corporations" have that individuals do not?


Broadly speaking, all the legal rights and privileges of a citizen and none of the liabilities and restrictions.
2012-10-05 09:00:37 AM  
6 votes:

kronicfeld: What "special rights" do "corporations" have that individuals do not?


They're taxed differently for starters. They can also limit their own personal responsibility for the things they do, something you or I cannot. They have the same rights as individuals without the same responsibilities or obligations.
2012-10-05 08:47:36 AM  
5 votes:
The scary part about this is that Scalia's vote is effectively doubled, because all Clarence Thomas does during arguments is ask "How'd Scalia vote?", vote that way, then go back to reading his copy of Juggs.
2012-10-05 09:12:26 AM  
3 votes:
And let me be clear, by calling Scalia an idiot I do not mean he is not intelligent. I just think his mind is so buried in ideology that he can't see outside of that ideology, and any mental resources he has are used to twist, rip, tear, and shred reality until it fits into the mold of his ideology, humanity be damned.
2012-10-05 08:52:20 AM  
3 votes:
We need a Constitutional amendment ending lifetime appointment to the Supreme Court
2012-10-05 08:29:58 AM  
3 votes:
So it doesn't prevent restrictions on abortion.
So it doesn't prevent restrictions on capital punishment.
So it doesn't prevent restrictions on homosexual sodomy. oops
So it doesn't prevent restrictions on restrictions on homosexual sodomy.

That's a pretty solid case there judge.Seems legit.
2012-10-05 06:44:36 PM  
2 votes:

wisewerds: Talondel: Just what is your position?


On which issue? Oh what the hell, I'm bored at work I'll tackle them all:

Sodomy laws:

Under the original (1868) meaning of the 14th Amendment's equal protection clause, the phrase "equal protection under the law" means exactly today what it did then. When a state enacts a law, it must do so in a way that makes the law equally applicable to everyone, and thus laws which treat one class of citizens one way, and another class another way, are subject to various levels of scrutiny. This applies to statutes which classify people based on the plain language of the statute (facial challenges) or to statutes which are facially neutral but discriminatory as applied (as applied challenges).

Thus, a sodomy law that outlaws oral and anal sex is Constitutional if in practice it is applied equally to all citizens. However, if it is applied only to homosexuals then in becomes subject to intermediate scrutiny because it is discrimination based on gender. Thus sodomy laws will only survive judicial review if the government can import to an 'important' government interest, and mere 'morality' issues will not suffice. (Note that under my view, if there was a significant public health risk that was posed only by homosexual activity, then there could be an important government interest.)

The practical effect is that sodomy laws are unconstitutional, because if you think straight people are going to let a ban on oral sex that actually applies to them get passed anywhere, you're crazy (everyone knows state legislators love hummers).

Note: This is *not* the logic that was used to strike down sodomy laws in the past. Instead those rulings appear to be based on the substantive due process clause and the fundamental right to privacy. (I say appear, because the language in Lawrence is notoriously unclear on the subject of exactly what standard is being applied based on what clause, the assumption of most legal scholars being that the language had to be left deliberately vague so that they could get a majority of the justices that wanted to strike the law down to sign on to a single opinion)

Gay marriage:

So far the argument has been that the Prop 8 ban is unconstitutional not because it discriminates based on 'gender' but because it doesn't even pass the rational basis test. That is, it doesn't stand up to rational basis review because it doesn't actually effect the rights of either same sex or different sex couples, because all it really does is assign one name to the right for different sex couples (marriage) and one name to same sex couples (civil unions).

I dislike this logic for a number of reasons. First, it implies that if Prop 8 had been *more* discriminatory, it might have been upheld. I don't think that's good for either policy reasons or for purposes of Constitutional interpretation (I seriously doubt that anyone intended the 14th Amendment to treat laws that were only *superficially* discriminatory more harshly than laws that were *actually* discriminatory).

It makes more sense to view the law as discriminating on the basis of gender and then applying the same intermediate scrutiny test as above.

Alternately, you can say there is a fundamental right to choose who you will marry, and that right is protected by the substantive due process clause. In that case, the law is subject to strict scrutiny and would be struck down. Some people have a problem with this because the same logic could be applied to consensual incestuous marriages. To that I say: So what? If two consenting brothers and sisters want to marry, let them.

This 'problem' does not arise if you deal with it under the equal protection clause, which is one reason to prefer that approach. However, there is the problem of precedents that clearly state the gender preference isn't a protected class, and those cases would have to be overturned.

So to sum up, on same sex marriage there are at least three ways to find Prop 8 (and Arizona's Prop 200) unconstitutional. I prefer the intermediate scrutiny approach under the equal protection clause, but it's not the most likely outcome.

Ideally I would want the government out of defining 'marriage' except as it applies to legal concepts like property and testimony. There are two components to marriage, the religious component that deals with your vows to yourself, your spouse, and your God(s), and the legal component that deals with how the law treats your property and provides some evidentiary exceptions. Let the states deal with the legal issues and let the churches deal with the definition of marriage they want to apply to their followers. Keep the states out of that issue on separation of church and states grounds (policy grounds, not actual constitutional grounds, I don't think the free exercise or establishment clause are actually good arguments for blocking same sex marriage laws based on existing precedent).

Abortion:

Roe v. Wade and Casey v. Planned Parenthood were wrongly decided and should be overturned. While there is a fundamental right to privacy, saying that it applies to a medical procedure like abortion makes little sense. States regulate similar (but less controversial) procedures all the time and the 'right to privacy' suddenly disappears when the procedure being regulated is one involving organ sales, euthanasia, mandatory immunizations, mercury fillings, or any number of other medical decisions that are banned, required, or regulated by the states. If you can tell me why the right to privacy applies to abortion by not to my decision to end my own life, please feel free (Rehnquist tried, but I found his argument ultimately uncompelling).

A federal law should be passed making it legal for people to travel interstate to obtain any medical procedure which is legal in another state (which would be justified under the interstate commerce clause or the P or I clause of the 14th along with section 5 of the 14t, and would preempt state laws that try to make going out of state to obtain an abortion illegal) and other than that, the federal government should get the hell out of the abortion debate altogether.

People in these threads have been complaining about how selectively Scalia applies originalism, but they're willfully blind to how the liberal wing of the court selectively applies the 'right to privacy'. 

Before anyone responds. Please keep in mind that as I stated earlier, I am as 'pro abortion' as they get. But the Constitution doesn't protect my right to an abortion (or rather, my wife's) any more than it protects my right to sell my kidney to a person who needs it.
2012-10-05 11:53:36 AM  
2 votes:
Yet another article of him openly declaring he decides verdicts prior to actually hearing cases, and nobody seems to care.
2012-10-05 10:57:49 AM  
2 votes:

Because People in power are Stupid: By his own arguments the 2nd amendment only pertains to antiquated black powder rifles.


and cannabis would be legal. hey, half the gotdamn founding fathers grew hemp on their plantations.
2012-10-05 10:52:18 AM  
2 votes:
By his own arguments the 2nd amendment only pertains to antiquated black powder rifles.
2012-10-05 08:51:36 AM  
2 votes:

WorldCitizen: edmo: So it doesn't prevent restrictions on abortion.
So it doesn't prevent restrictions on capital punishment.
So it doesn't prevent restrictions on homosexual sodomy. oops
So it doesn't prevent restrictions on restrictions on homosexual sodomy.

That's a pretty solid case there judge.Seems legit.

He's one of the people those Founders who were against a bill of rights feared. They feared some idiots would come along some day and say if a right wasn't included in the list, the idiots would think the Constitution didn't grant that right if it otherwise didn't list it has prohibited. Well, Scalia proved them right.


Not true.

Corporations don't have special rights in the Constitution, but that didn't stop Scalia from making some up. Now, if you're a real, flesh and blood person, Scalia thinks you only get the rights specifically granted in the bill of rights.

But legal entities? Sky's the limit.
2012-10-05 08:30:24 AM  
2 votes:
Well, at least we know how he would have ruled on Dred Scott (for) and Brown (against).
2012-10-05 11:07:50 PM  
1 votes:

Keizer_Ghidorah: tekmo: Fourteenth Amendment Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

That's the text.

Is Scalia the self-proclaimed "textualist" saying Americans who happen to be gay are not citizens or not persons? 

fark Scalia.

Certainly seems like it. Of course, the easiest way to be evil towards someone is to see them as not human.


Again, this is incorrect. His argument is not that the 14th amendment doesn't apply to homosexuals because they are not people or are not citizens. His argument is that the 14th amendment was not intended by the people who wrote it to protect homosexuals from regulation by the states. If you are going to attack his position, the first step is to actually understand his position. In other words, that they aren't a 'protected class' within the meaning of 14th equal protection clause, and that same sex marriage isn't a fundamental right within the meaning of the due process clause. I disagree with those positions, but at least they more accurately describe his positions. See above.
2012-10-05 10:27:25 PM  
1 votes:
Fourteenth Amendment Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

That's the text.

Is Scalia the self-proclaimed "textualist" saying Americans who happen to be gay are not citizens or not persons

fark Scalia.
2012-10-05 06:16:54 PM  
1 votes:

Gyrfalcon: When you've got someone who can look at the decisions in Loving v. Virginia and Bowers v. Hardwick and see NO comparison...and can make an argument that almost makes sense...you've got not just an ideologue, but a very dangerous person to be sitting on the highest court in the land.


THIS.

Scalia is the #1 domestic enemy of the Constitution.

I'm reminded of the officer in Vietnam who (without irony) said "We had to destroy the village to save the village". Scalia epitomizes that mentality.
2012-10-05 05:54:40 PM  
1 votes:
The match has been called:
Talondel: 1
Theaetetus: 0

Talondel: Just what is your position?
2012-10-05 05:31:22 PM  
1 votes:

kim jong-un: WorldCitizen: Because People in power are Stupid: By his own arguments the 2nd amendment only pertains to antiquated black powder rifles.

Well, it says "arms" not guns. So maybe some cannons as well.

Of course, if you took the Constitution very literally, it does just say arms. Nuclear arms? Chemical arms? Biological arms? And I do remember at least one Farker arguing that in fact, based on the 2nd Amendment, Americans have the right to bear nuclear arms.

You do have that right. However, everyone else also has the right to ensure that they are not killed because your nuclear arm is HIGHLY valuable. Everyone and their brother would be trying to steal it. Therefore it stands to reason that the government could require you to demonstrate that you have the capability to defend that nuclear weapon from being taken from you.

But let's face it. You do have the right to own a nuclear weapon, because if you DID own a nuclear weapon, who the hell is going to tell you otherwise? Trust me on this one ;)


Well the actual cases the Court decided on the 2nd Amendment contain plenty of discussion about the meaning of the word 'arms' as it relates to the 2nd Amendment:

Before addressing the verbs "keep" and "bear," we interpret their object: "Arms." The 18th-century meaning is no different from the meaning today. The 1773 edition of Samuel Johnson's dictionary defined "arms" as "weapons of offence, or armour of defence." 1 Dictionary of the English Language 107 (4th ed.) (hereinafter Johnson). Timothy Cunningham's important 1771 legal dictionary defined "arms" as "any thing that a man wears for his defence, or takes into his hands, or useth in wrath to cast at or strike another." 1 A New and Complete Law Dictionary (1771); see also N. Webster, American Dictionary of the English Language (1828) (reprinted 1989) (hereinafter Webster) (similar).

The term was applied, then as now, to weapons that were not specifically designed for military use and were not employed in a military capacity. For instance, Cunningham's legal dictionary gave as an example of usage: "Servants and labourers shall use bows and arrows on Sundays, &c. and not bear other arms." See also, e.g., An Act for the trial of Negroes, 1797 Del. Laws ch. XLIII, §6, p. 104, in 1 First Laws of the State of Delaware 102, 104 (J. Cushing ed. 1981 (pt. 1)); see generally State v. Duke, 42Tex. 455, 458 (1874) (citing decisions of state courts construing "arms"). Although one founding-era thesaurus limited "arms" (as opposed to "weapons") to "instruments of offence generally made use of in war," even that source stated that all firearms constituted "arms." 1 J. Trusler, The Distinction Between Words Esteemed Synonymous in the English Language37 (1794) (emphasis added).

Some have made the argument, bordering on the frivolous, that only those arms in existence in the 18th century are protected by the Second Amendment . We do not interpret constitutional rights that way. Just as the First Amendment protects modern forms of communications, e.g., Reno v. American Civil Liberties Union, 521 U. S. 844, 849 (1997) , and the Fourth Amendment applies to modern forms of search, e.g., Kyllo v. United States, 533 U. S. 27, 35-36 (2001) , the Second Amendment extends, prima facie,to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding.
2012-10-05 03:50:21 PM  
1 votes:

Talondel: Copying this post from the other thread, since it apparently needs to be said in here also:


So that more people know how wrong you are? Is that really wise?

The states can regulate virtually anything, unless the constitution explicitly prohibits it. The (main) part of the Constitution that limits the powers of the states is the 14th Amendment. This is really the only part of the Constitution that is relevant when talking about issues like abortion (due process clause of the 14th) or gay marriage (equal protection clause of the 14th).

The 14th Amendment was enacted after the civil war, as part of reconstruction, in 1868. If you are an originalist like Scalia, when you are interpreting the 14th Amendment you look to the meaning intended by the original authors. As part of that, you ask "Would they have intended this to apply to things like sodomy and same sex marriage?" The answer to that question is clearly "No, they would not have" and you can tell that's the answer (as Scalia notes) because both of those things were illegal at the time the 14th was enacted, and they remained illegal for a hundred years after. Not just in some states, but in all of the states, including those that supported the 14th Amendment.


But, the 14th amendment includes a similar clause to the due process clause of the 5th, which had already been held to protect substantive fundamental rights at the time of drafting of the 14th. Thus, by including parallel language, the drafters clearly intended to have the same doctrine applied to the states.

Did they expect that it would encompass sodomy or same sex marriage? Of course not... but they also didn't think it would include travel via automobile or jet plane, communication via the Internet, or the speech rights of corporations. What they did expect was that rulings on such substantive rights would follow the same doctrines that had been established under the 5th amendment, and that rights could be protected beyond just the mere enumerated rights in the Bill of Rights.

Thus, did they intend it to cover jet planes? No. Did they intend it not to cover jet planes? Absolutely not. Similarly, there is no indication, despite what Scalia pulls from his ass, that they intended it not to cover sodomy or same sex marriage.
Furthermore, unlike jet planes, automobiles, the Internet, and loud speaking corporations, sodomy and marriage both existed. Therefore, the drafters could surely have included them as exceptions in the amendment, if they wanted. They did not include them. Therefore, we must assume that they had no intention of the amendment having such exceptions.

Now, you can argue that Justices shouldn't interpret the 14th Amendment that way. But, it's certainly not inconsistent with Scalia's overall ideology to interpret it that way.

Only if Scalia is similarly restrictive on automobiles, communications over wires, the FAA, etc. No, Scalia's position is internally inconsistent, as he appears to only use strict (but false, as shown above) textual reading when it supports his ideology and uses expansive interpretation when that supports his ideology.

This thread is disheartening in that it shows repeatedly just how ignorant people are about the Constitution.

This thread is disheartening in that, owned in one thread, you felt the need to copypaste the same idiocy in this thread. Now you've spoiled two of them. Good jorb.
2012-10-05 03:40:04 PM  
1 votes:
Erm what is subbie pissed off about again?
2012-10-05 03:00:43 PM  
1 votes:

WorldCitizen: And let me be clear, by calling Scalia an idiot I do not mean he is not intelligent. I just think his mind is so buried in ideology that he can't see outside of that ideology, and any mental resources he has are used to twist, rip, tear, and shred reality until it fits into the mold of his ideology, humanity be damned.


Bingo. If he wasn't a Supreme Court justice, he'd be a highly respectable scholar on all things Constitutional, the Federalist papers, etc. He KNOWS that stuff, inside and out--you can't do what he does with the law without knowing everything there is to know about how the Constitution came to be. What's sad and scary and indeed shocking is that he uses that knowledge to twist the law to fit his own version of Bizarro World. Worse, like a religious fundamentalist, the Constitution is his Bible: If he likes a law, then he finds a way for it to be Constitutional. If he doesn't like it, then miraculously, there's no "right" to it in there. And yet, because he knows what he's doing, it's very hard to pick apart his opinions and say LEGALLY why he's wrong (ethically and morally, it's very easy to say why he's wrong).

When you've got someone who can look at the decisions in Loving v. Virginia and Bowers v. Hardwick and see NO comparison...and can make an argument that almost makes sense...you've got not just an ideologue, but a very dangerous person to be sitting on the highest court in the land.
2012-10-05 02:34:15 PM  
1 votes:

Weaver95: y'know, if Scalia was actually consistent with his own ideology he would HAVE to rule in favor of gay marriage. less government regulation is the mantra of the right wing, is it not? getting government out of the marriage business would be consistent with that ideology. imposing government restrictions on marriage is antithetical to a 'small government' conservative ideology.


Since when have conservatives ever been ideologically consistent?

They claim to worship a God who went around healing and feeding the poor, and fight tooth and nail against feeding and healing the poor.

They claim to want less government intrusion in their lives, but are perfectly happy to have government intrude in other people's lives.

Conservatism is the ideology of selfishness. MY rights, MY taxes, MY religion, ME ME ME ME ME. Never a moment's concern about anyone else besides themselves and their circle of friends who look and think exactly like they do.
2012-10-05 02:23:36 PM  
1 votes:

Theaetetus: Precisely. Now, if the majority of the states had affirmative rights to hunt in their constitutions, then wouldn't it be reasonable to suggest that the Supreme Court should recognize the existence of such rights federally under the 9th?


Why can't each state get to decide whether those rights exist or not? When we talk about abortion, sodomy, contraceptives, etc., we are always talking about the Supreme Court modifying STATE laws -- almost never federal laws. Why can't the Supreme Court respect those rights -- you want legal abortion in California, go for it -- rather than forcing all states to fall in line behind the majority. For example, before Roe v. Wade, abortion was already legal in most states.

Indeed, if the Supreme Court is just going to create new national rights whenever a majority of states agree on something, why do we have provisions in the Constitution allowing the Constitution to be modified, either by the people or by conventions of the states? And if that's the case, shouldn't we tell people that--so that they understand that by passing state laws they are amending the Constitution?

Theaetetus: If the Supreme Court was not able to recognize a right commonly understood by the states and the citizenry, then the only way those rights could be protected would be through federal constitutional amendments... but at that point, the 9th amendment is not just legally inoperative, but explicitly contradicted, as only enumerated rights would be protected.


Are you crazy? Hello -- if people don't like a state law they can (a) get that law repealed either through their state legislature or through a referendum, (b) amend their state constitution to void the law, (c) convince their state or local executive officials not to enforce the law, or (d) move to a state with better laws. This is exactly what I'm talking about -- people forget that they can protect their rights and interests through the state and local political process and think they can ONLY have their rights protected by 9 old lawyers sitting in Washington. This thought is degrading to us as citizens or a republic and detrimental to the functioning of state and local democracy.

You seem to think we are subjects of a 9 person monarchy whose rights exist only at their whim.
2012-10-05 02:12:09 PM  
1 votes:

hartzdog: Theaetetus: Since the constitution is open to judicial interpretation, then judges may determine the specificity and scope of such rights, consistent with the "collective conscience" of society, under 5th amendment jurisprudence.

is this really how the world's greatest democracy now functions? 9 old lawyers are supposed to divine the "collective conscience" of society and render supreme judgments governing the entire country? When did "Supreme Court" become synonymous with "Politburo"?


when Congress decided to stop doing their jobs, the other two branches of government had to step up and take up the slack.
2012-10-05 02:08:28 PM  
1 votes:

clyph: hartzdog: What he is saying is that the Constitution doesn't require that these things be legal

And that is where he is wrong.

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

Just because it isn't an ENUMERATED right doesn't mean it isn't a PROTECTED right, Jackass.


Protected by who? You really think that the 9th Amendment -- a throw-away amendment that was added without much thought or consideration -- was designed to allow the Supreme Court to decide each and every right that exists and determine, for 300+ million people, what activities the government can and cannot regulate?

I think that such an idea would case the founding fathers to shoot themselves at the thought that we have a nation of people who would choose to rely exclusively on 9 unelected individuals to tell them what rights they do and do not have rather than participate in the political process and take it upon themselves to help safeguard their own rights.
2012-10-05 01:57:16 PM  
1 votes:

Animatronik: Trollmitter,

Thats not what he said. He said that he reads the Constituion to mean what it meant to the people who wrote it.

Its actually very simple. There is a group of people in country who want to ditch the constitution because it gets in the of the way of "social justice " (aka communal redistribution) so they ridicule it; declare it obsolete, and try to undermine its language any way they cab.

Then there are people who read it according to its actual meaning like Scalia.


There are people who believe that whatever a document says is for use by the people who need to use it. The very fact that we still appoint people to interpret the words on those pages lends credence to that idea.

The Founders, not a particularly religious group - and even if they were, they certainly were not a group that wanted to be ruled as or governed by a religious body - probably would not have liked their words and concepts being treated like Biblical passages, with ONE meaning, and all who deny/defy it are heathens in need of killing.

So Scalia gets to play spirit medium in his head and pretend he knows exactly what (for example) Jefferson meant when he wrote (for example) the Fourth Amendment. Never mind that the Constitution proscribes what the GOVERNMENT can and cannot do to its citizens (and not the other way around), we have a population to control.

If the Founders didn't mention the internet, why is the government allowed to use it to flex its investigative/legislative/judicial muscles?
If the Founders didn't mention abortion or gays, why is the default position "not allowed" (9th Amendment)?
If the Founders didn't mention sex, why is the government allowed to legislate it? Are the Feds allowed to outlaw ALL sex?

If the Founders didn't say the government can't abridge freedom of "expression", why has SCOTUS lumped that in under the First? Because otherwise, the text is meaningless. What Originalist turdbirds like Scalia don't realize is that sometimes, human beings can look at a collection of statements and lump them together to extract the underlying meaning.

Example: the government says people have the right to be secure in their persons, and that we are free from unreasonable searches, and those performed without probable cause to believe a crime was committed. So that right there is a "right to privacy", flowing directly from the words (not case law or a "modern understanding") of the 4th and 5th.
2012-10-05 01:38:12 PM  
1 votes:
Either you believe the constitution is a social contract, or you believe it's a license for an unelected elite to impose their vision of a just society on the rest of us.

If, like Scalia, you believe the constitution is a social contract, then you interpret it like a contract. You look to the intent of the people who framed and ratified that contract. And if you want to change the original understanding of the contract, then you go through the process spelled out in the contract for doing that.

Whether you think it is right or wrong, Scalia's position has the benefit of being principled. It is consistent with the long history of Anglo-American jurisprudence. It is based on an objective standard.

If, as most modern day liberals do, you believe the constitution is a license for an unelected elite to impose their vision of society on the rest of us, you have some problems.

First, that position has no principle behind it. If that unelected elite decide that it's ok to take your guns away, or to allow the police to search your house without a warrant, or to prohibit internet news sites, or that the people who post on such sites should be rounded up, put in concentration camps, and shot, what right do you have to complain?

Second, if you believe that the constitution is a social contract, what obliges you (other than the fear of the application of force) to pay the slightest attention to the pronouncements of the elite? The answer is quite simple: none.
2012-10-05 01:04:57 PM  
1 votes:

WorldCitizen: No, I'm saying, the Constitution is open to interpretation (or else we would have an extremely minimalist federal government, which we don't). So, either it's flexible and we have an Air Force and the ability to interpret "the right to bear arms" to mean, yes, but no unlimited TYPES of arms or it's not open to interpretation and we have an individual right to nukes and no Air Force. So far as a society, we've gone very much down the it's a flexible document open to interpretation route.


Again, that makes no sense and it sounds like someone who has never read the Constitution or understood where the argument about the air force's constitutionality comes from. It's the difference between describing the scope of an enumerated power in Article 1, and describing the scope of a constitutionally guaranteed right. There's no requirement that both scopes be read in exactly the same way, with the same jurisprudence.

Further, the argument is incorrect anyway, as it disregards the Necessary and Proper clause.
2012-10-05 12:57:21 PM  
1 votes:

Theaetetus: WorldCitizen: Well, it might very well be open to that interpretation. I'm still bothered by our total disregard for the meaning behind the first half of the Amendment which seems to nearly always be completely ignored for context.

Actually, I think it's the other way around... People try to interpret the first clause in a way consistent with our current understanding of the terms to limit the second clause, while disregarding the context of it in the late 1700s. It's not their fault, though - the clause obfuscates the purpose, because it's tiptoeing around the inherent contradiction of enabling revolution against the government in a document establishing the government: rebellion is treason, and cannot be protected by the Constitution... but the right to bear arms is necessary as a deterrent against a tyrannical government - i.e. necessary to secure a free state.

It could be argued that we all have the right to keep arms of all kinds including hydrogen bombs. So far, we have not interpreted it that way as we place all kinds of limits on what types of arms are allowed. So far we've said, sure, you're allowed to bear arms, but that does not mean any kind of arms imaginable. That might or might not be disregarding the Constitution. It might just be interpretation. Otherwise, the Air Force is clearly unconstitutional.

That doesn't follow. You're saying that because we place limits on ownership of arms, contrary to the second amendment, therefore Congress lacks power under Article I to implement an Air Force? Forgive me, but you sound as if you heard the "air force is unconstitutional" argument once before and never really understood what it meant or even what parts of the Constitution would be relevant to such an argument.


No, I'm saying, the Constitution is open to interpretation (or else we would have an extremely minimalist federal government, which we don't). So, either it's flexible and we have an Air Force and the ability to interpret "the right to bear arms" to mean, yes, but no unlimited TYPES of arms or it's not open to interpretation and we have an individual right to nukes and no Air Force. So far as a society, we've gone very much down the it's a flexible document open to interpretation route.

And I've said this in other threads, I don't worship at the alter of the Constitution. I believe in rights. Where they fall in line with the Constitution, I will damn well expect the government to enforce their existence. Where they don't fall in line with the Constitution, or at least some judges interpretation of it, I will support change in whatever context that comes.

Things I believe in firmly regardless of whether or not the Constitution seems to support:

Right to free speech/thought.
Right to freedom of religion (or lack of religion)
Right to be free from physical or property harm
Right to control what goes in and comes out of your own body (including the decision to end the life of that body).
Equality before the law for all people.

So, the only alter I worship at is one where those rights burn bright, and I believe in them for all of humanity and not just my tribe.
2012-10-05 12:57:05 PM  
1 votes:

hartzdog: What he is saying is that the Constitution doesn't require that these things be legal


And that is where he is wrong.

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

Just because it isn't an ENUMERATED right doesn't mean it isn't a PROTECTED right, Jackass.
2012-10-05 12:44:33 PM  
1 votes:
I think people need to give his arguments a little more credit. The Constitution was largely written over 200 years ago. Just because people's minds have changed about what individuals should have a right to do or not do doesn't mean that the meaning of the Constitution changes also. The idea that the rights guaranteed by the Constitution change over time means that we have nine unelected people with life tenure who get to decide how far common notions about privacy, sex, and family have changed and thus create laws that govern 300,000,000 people.

He is NOT saying that consensual sodomy and abortion should be illegal. What he is saying is that the Constitution doesn't require that these things be legal. And if people want them to be legal, then we have 50 little republics across this land in which the citizens of each republic can elect leaders who will draft laws that reflect what they want. The idea that the Supreme Court can just create new rights by fiat is both undemocratic and is anathema to local and state democracy (people don't get involved in state and local politics to protect their rights because they know that it's easier just to go through the courts). And maybe if there was more participate in state and local democracy--especially liberal participation--we'd have more people in place that would work to solve issues like police corruption and low-quality public schools. But because state and local governments have very little direct impact on our lives (in part because the Supreme Court has usurped many of their policy making functions), no on gets involved.

I'm not saying he's right (and we all know he's not consistent in applying his viewpoint). But I am saying that if people gave his point of view a little credit they might actually think about these issues and have better things to say in response.
2012-10-05 12:29:07 PM  
1 votes:
The Constitution makes no mention of killing people and yet prevents the government from placing restrictions on owning weapon. Clearly, our Founding Fathers want us to shoot each other whenever and where ever.
2012-10-05 12:28:57 PM  
1 votes:

WorldCitizen: edmo: So it doesn't prevent restrictions on abortion.
So it doesn't prevent restrictions on capital punishment.
So it doesn't prevent restrictions on homosexual sodomy. oops
So it doesn't prevent restrictions on restrictions on homosexual sodomy.

That's a pretty solid case there judge.Seems legit.

He's one of the people those Founders who were against a bill of rights feared. They feared some idiots would come along some day and say if a right wasn't included in the list, the idiots would think the Constitution didn't grant that right if it otherwise didn't list it has prohibited. Well, Scalia proved them right.


The Bill of Rights doees't grant rights to the citizens of this country. It limits the powers of the Federal Government.
2012-10-05 12:11:33 PM  
1 votes:

WorldCitizen: Because People in power are Stupid: By his own arguments the 2nd amendment only pertains to antiquated black powder rifles.

Well, it says "arms" not guns. So maybe some cannons as well.

Of course, if you took the Constitution very literally, it does just say arms. Nuclear arms? Chemical arms? Biological arms? And I do remember at least one Farker arguing that in fact, based on the 2nd Amendment, Americans have the right to bear nuclear arms.



Only if they're part of the "well-regulated militia," which is to say, the National Guard. It's funny to see how these guys cherry-pick the parts of the Constitution that they are going to get all literal about.

The Founders never imagined a standing army; they imagined each state would have a militia that showed up for drill with their own firearms. During a time of war the Feds would nationalize the state militias.

It's all right there in the Constitution, but since that's not what today's gun-fetishists want to believe, it's conveniently ignored.
2012-10-05 11:48:44 AM  
1 votes:
That's right. Gays should not be allowed to marry because there were sodomy laws at the time of the writing of the Constitution.

I wonder if gays could be allowed to OWN each other. There were plenty of pro-slavery laws at the time of the writing of the Constitution.
2012-10-05 10:41:52 AM  
1 votes:

WorldCitizen: And let me be clear, by calling Scalia an idiot I do not mean he is not intelligent. I just think his mind is so buried in ideology that he can't see outside of that ideology, and any mental resources he has are used to twist, rip, tear, and shred reality until it fits into the mold of his ideology, humanity be damned.


he certainly seems to have an authoritarian mindset, and I tend to believe that most authoritarians are mentally ill. with Scalia though, the guy seems to be actively and almost gleefully malicious. I think he knows exactly what he's doing, and believes that it's honestly the best way for him to do his job. it would be easier if he was mentally ill or 'merely' a fanatic. you could almost dismiss his ideology at that point. But he really seems to have thought things through and honestly believes that his way is the only way to live. that's f*cking scary as hell.
2012-10-05 10:34:05 AM  
1 votes:

Weaver95: "The death penalty? Give me a break. It's easy. Abortion? Absolutely easy. Nobody ever thought the Constitution prevented restrictions on abortion. Homosexual sodomy? Come on. For 200 years, it was criminal in every state," Scalia said at the American Enterprise Institute.

there are days when I think this man would bring back slavery.


Well, it was obviously the original intent of the Founders, so it would not be all that surprising.
2012-10-05 10:29:13 AM  
1 votes:
"The death penalty? Give me a break. It's easy. Abortion? Absolutely easy. Nobody ever thought the Constitution prevented restrictions on abortion. Homosexual sodomy? Come on. For 200 years, it was criminal in every state," Scalia said at the American Enterprise Institute.

there are days when I think this man would bring back slavery.
2012-10-05 09:31:51 AM  
1 votes:
Scalia is one of the guys for which I wish there existed a heaven and a St. Peter.
2012-10-05 08:32:46 AM  
1 votes:

edmo: So it doesn't prevent restrictions on abortion.
So it doesn't prevent restrictions on capital punishment.
So it doesn't prevent restrictions on homosexual sodomy. oops
So it doesn't prevent restrictions on restrictions on homosexual sodomy.

That's a pretty solid case there judge.Seems legit.


He's one of the people those Founders who were against a bill of rights feared. They feared some idiots would come along some day and say if a right wasn't included in the list, the idiots would think the Constitution didn't grant that right if it otherwise didn't list it has prohibited. Well, Scalia proved them right.
 
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